Category Archives: Uncategorized

Evening the Playing Field: CA’s New Fair Pay Act

California New Fair Pay ActThe lack of wage equality amongst genders has been well-documented for some time and, as you may have noticed, has become a staple of candidates’ speeches in election years. And rightly so, for even in 2013 women earned 84 cents for every dollar a man earned. This gap is even worse for African American women (64 cents) and Latina women (44 cents). Pay discrimination of this sort is usually easy to hide by prohibiting or discouraging employees from talking about their pay. The employee’s fear of retaliation may also help to keep this illegal activity secret. California, however, had new legislation go into effect on January 1, 2016, to further curb this kind of activity.

The Original Fair Pay Act

The California Equal Pay Act (“EPA”) was passed in 1949 and had its last update in 1985. Though it helped in addressing the issue of pay inequality, it was not perfect and presented some loopholes that companies were able to use to their advantage. One such instance was the “same establishment” provision which prevented a female working at a facility from comparing her wage to that of a male at a facility at another location. If that was not enough, employers could raise the “any bona fide factor other than sex” defense and its overly broad interpretation to provide excuses for pay discrimination. Meaning they could simply say, “we paid her less because she’s not as fast, qualified, effective, etc., and get around the requirement.

Finally, though the Labor Code has provisions protecting employees that disclose their own wages, there were no specific protections for employees inquiring about the wages of others even if it was solely for the right to be paid equally.

A Leaner, Meaner Fair Pay Act

The California Fair Pay Act, which went into effect this year, will help reinforce the California EPA.  First, it does away with the “same establishment” requirement, so that employees performing the similar work at different locations are paid equally. Secondly, it has narrowed the “bona fide factor other than sex” defense to more specific defenses that the employer will have to use closing the ambiguous loophole from before. Finally, it explicitly prohibits retaliation or discrimination against employees who disclose, discuss, or inquire about their own or other coworkers wages for the purpose of enforcing equal pay under the California EPA.

Pay discrimination is not a fake issue brought up the sake of political debates, but a real thing occurring more than it should.  If you feel as though you are not making an equal amount compared to other employees doing similar work because of your gender, call an employment lawyer.

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What Motivates Employees to Sue their Employer?

I’ve written extensively about this subject. I’ve repeated it over and over that employees don’t sue their boss because “the law was broken,” they sue because they feel like they were treated like garbage. They only learn that the law was broken when they speak with an employment lawyer like me. I was recently interviewed by HR Morning about this subject, and I think the word is getting out to the decision makers.

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Sexual Harassment in the Workplace – Men Harassing Men or Women Harassing Women is still Harassment

The Office - Men Harassing Men At WorkIs same-sex sexual harassment even a legal claim? Although sexual harassment in the workplace claims are often brought by female employees, they can also be brought by male employees against female supervisors or coworkers, and even male employees against a male supervisor or coworker. So yes, same sex sexual harassment is a legitimate legal claim! How do you deal with this? A good place to start is to discuss the matter with an employment lawyer. This law firm will be happy to give you a free consultation to hear about your situation.

What constitutes sexual harassment?

Sexual harassment can consist of lewd comments and physical actions, as well as sexual advances, whether verbal or physical. Further, the sexual harassment need not be motivated by sexual desire. What this basically means is that the perpetrator of sexual harassment does not need to have the goal of sexual intimacy with the victim.

Rather, sexual harassment can take the form of a coworker merely saying sexual or inappropriate jokes or constantly doing sexual acts (even if it is intended to be a joke) in the victim’s presence. Finally, the victim’s sexual orientation is irrelevant. For example, sexual harassment can occur even if the perpetrator and the victim are both heterosexual.

Example Case: Beasley v. East Coast Foods Inc. D/B/A Roscoe’s House of Chicken N’ Waffles

Beasely is a great case example of same-sex sexual harassment in the workplace. Plaintiff, a male, sued his employer for sexual harassment among other things. Plaintiff worked for the employer as a manager in one of defendant’s many restaurants. Unfortunately, during his employment, plaintiff was victim to many forms of sexual harassment. The perpetrators made sexual comments and sexually charged physical actions towards Plaintiff. Plaintiff complained about the sexual harassment multiple times. Not surprisingly, Plaintiff was thereafter terminated.

Plaintiff alleged he was retaliated against by being terminated due to his complaints of sexual harassment. Defendant argued that he was actually terminated for not showing up to work. The jury did not buy Defendant’s argument and sided with the Plaintiff. Plaintiff was awarded over $1,600,000.

Contact an Employment Lawyer if You Are Being Sexually Harassed

At the end of the day, Beasely shows that it does not matter what sex you are, if you are being sexually harassed at work, then your rights are being violated. Further, if you complain about sexual harassment in the workplace, and you are being retaliated against, then your rights are being violated. If you feel you are the victim of sexual harassment in the workplace and your employer has not done anything to fix the situation, call an employment lawyer immediately.

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Holding Employers Accountable for Sexual Harassment: Chopourian v. Catholic Healthcare West

My good friend, Lawrance Bohm, got the largest sexual harassment verdict in history for his client, Ms. Chopourian. The case demonstrates that sexual harassment still occurs quite often across California, especially with highly successful individuals like doctors. Sexual harassment is one of the more disturbing forms of gender discrimination. Not only can it financially hurt someone in their profession, but can also severely hurt an individual emotionally.

Sexual harassment most commonly takes the form of hostile work environment. Hostile work environment can take the form of verbal and physical conduct, whether sexual or nonsexual in nature. In hostile work environment cases, an employee must show that he or she was subjected to unwelcome sexual advances conduct or comments, and harassment was so severe as to alter the conditions of the victim’s employment and create an abusive working environment. Further, the employee must also show the employer knew or should have known of the sexual harassment. Usually, the harassed employee is terminated for poor performance or for a reason out of nowhere or arbitrary.

In Chopourian v. Catholic Healthcare West, plaintiff, a surgery physician assistant, was terminated for not showing up to an on call shift, but plaintiff filed suit. She claimed she was terminated after filing over a dozen written complaints over the course of two years regarding sexual harassment in the workplace. During her employment, plaintiff was subjected to consistent unwanted sexual advances and physical contact, as well as inappropriate and demeaning sexual comments such as surgeons telling her they are horny. The jury was not convinced by the employer’s reasons for termination and awarded plaintiff a verdict of $167,730,488.00.

At the end of the day, this case is good news for employees in California. A verdict this large is a testament that employers will be still be held accountable for the wrongs they commit in the workplace. If you believe you have been a victim of a hostile work environment, contact an employment lawyer immediately.

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Sheldon Cooper on How Not to Behave in Court

While this video isn’t about employment law, it does demonstrate improper courtroom demeanor. Sheldon Cooper (Jim Parsons of the Big Bang Theory) decides to insult a traffic court judge and finds himself in contempt. Hilarious.

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Arbitration is Bad for Employees. Trust me, I’m an Employee Rights Attorney.

Before I went to law school, I thought arbitration sounded neat. I had heard that lawsuits took years to resolve in court and were ridiculously expensive. Arbitration, on the other hand, sounded like an effective alternative to court. What is arbitration? As opposed to going to court, the feuding parties choose a “neutral” third party to review the facts, hear-out both sides, and make a ruling. Many proponents of arbitration say that it is faster, cheaper, and more fair. It’s not. Arbitration is bad for employees. Why? No jury. No media. No appeal. Period. Just an old white guy (usually) who rules with an iron fist. For those of you who like bullet points, here is a quick list of reasons why arbitration hurts employees:

Arbitration is Bad for These Seven Reasons

  • Unlike courts, arbitration is not a public system. Why is this bad? Because a company may repeatedly break the law, get sued in arbitration, but the public never finds out and there is no pressure on the company to ever make a change.
  • Unlike a judge in court, the arbitrator is not neutral. First, major corporations are constantly in arbitration against employees, and the corporation generally handpick arbitrators from firms with proven records of favoring the corporation. If word gets around that arbitrator ruled for an employee, the arbitrator gets blackballed by defense lawyers and goes out of business. It has happened. Second, and worse, many of these “neutral” arbitrators are under contract with corporations that engage in multiple cases. This is an enormous conflict of interest. Third, the company pays the majority of the arbitrators fee, essentially guilting the arbitrator to rule for the company.
  • Arbitrators do not have to reveal the reasons for his or her decision. They can say, “Company wins” and go home and take a nap. They are not legally accountable for errors, and their decisions do not set legal precedent for future cases.
  • Even if an arbitrator’s decision is legally incorrect, it still is enforceable, and there is nothing you can do about it. There is virtually no right to appeal an arbitrator’s ruling.
  • Generally, the company chooses the city or town where the case is heard, allowing it to make the case inconvenient, expensive, and unfair for employee bringing the complaint.
  • Arbitrators are not required to know the law relevant to the cases they adjudicate, follow legal precedents, or even be lawyers. Although most arbitrators are lawyers, it isn’t even a requirement!
  • Normal procedural rules for gathering and sharing evidence and safeguarding fairness to both parties do not apply in arbitration cases.

How to Avoiding Arbitration in Employment Disputes

  1. Don’t sign the arbitration agreement! This is the easiest way to avoid this mess. Arbitration is a contract, and contracts are not enforceable unless two parties agree. You don’t have to agree to it. If your employer asks you to sign an employment agreement, cross out the arbitration provision, initial and date it, and then give it to the employer. There is a risk that they won’t hire you, but if you’re a valuable hire I bet that many employers would simply ignore your failure to agree and hire you anyway. Make sure you get a copy of the revised agreement when you first get hired.
  2. Regardless of an existing signed arbitration agreement, have your lawyer file your case in court anyway. In many cases, the arbitration agreement is unenforceable due to various legal doctrines.

There is much more I could write on this subject. But I wanted to keep this article brief and to the point. Arbitration is bad and you should avoid it at all costs!

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Retaliation & Wrongful Termination in the Aerospace Industry

Many employees are retaliated against in the workplace. But not all retaliation or terminations are illegal.  This article discussed the case of Green v. Ralee Engineering Company. This case analyzes whether a company may fire an employee who complains about the failure to follow quality inspection protocols. In this case, the company manufactured airplane parts that were critical in keeping the plane safe.

Facts of the Wrongful Termination Case

In the mid 1990’s Ralee Engineering Company was sued by a former employee, Richard Green.  While employed, Mr. Green was a Quality Assurance Inspector. His duties were to inspect Ralee’s manufactured fuselage and wing components for military and civilian aircraft. Ralee supplied those parts to major airline assembly companies such as Boeing and to major war plane assembly companies such as Northrop.

Beginning in 1990, Mr. Green allegedly noticed that Ralee was shipping some airplane parts even though, according to him, they failed the inspections his team performed. On several occasions over the next two years, Mr. Green objected to Ralee’s practice to supervisory and management personnel and to the company president. He made all of his complaints internally, and at no time did he complain to outside government sources.

Despite his complaints, Ralee continued to ship allegedly defective parts to Boeing. In an effort to provide proof of the ongoing practice, plaintiff began photocopying the inspection reports, including some reports concerning parts destined for Boeing. In March 1991, Ralee shut down its night shift, citing a downturn in orders for the parts it produced. Ralee then fired Mr. Green along with other night shift employees.

Mr. Green filed a timely wrongful termination lawsuit against defendant. His attorney alleged Ralee terminated him in retaliation for his complaints about its inspection practices. His lawyer also argued that his complaints served a broad public policy favoring aviation safety, entitling him to tort damages even though he was an at-will employee.

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California Employment Lawyer’s Association Annual Conference was a Raging Success

CELA Annual Conference Employment Workplace Lawyer AttorneyFor the past few days I’ve been absorbing information at the California Employment Lawyers Association (CELA) annual conference. It has been an astounding event, full of highly intelligent and successful lawyers who deeply care about California worker’s rights.

I’ve seen presentations on wage and hour class actions, individual wage and hour cases, representing undocumented workers, updates on the evolving law concerning class waiver provisions in unconscionable arbitration agreements, and detailed analysis on the Harris v. City of Santa Monica mixed motive case. In all, if you practice employment law and you don’t go to this conference, you’re missing out on incredible tips, tricks, and strategies.

I’ve also had the pleasure to meet some highly regarded lawyers: Lawrence Bohm, Bryan Schwartz, and Glenn Kantor. I’ve seen presentations by David deRubertis, Michael Singer, and Cliff Palefsky. I can only hope that one day I’ve accomplished half of what these amazing individuals have accomplished. Keep up the good work!

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Your Employee File – An Employment Lawyer’s Perspective

Employee Personnel File Employment Attorney Request Employee FileAll current and former employees have the right to inspect and copy their employment file. Every employment attorney knows this fact. But what exactly are your rights? What are you entitled too? Can your company refuse?

California Labor Code section 1198.5(a) states:

Every current and former employee, or his or her representative, has the right to inspect and receive a copy of the personnel records that the employer maintains relating to the employee’s performance or to any grievance concerning the employee.

Generally, an employer must comply with your request within 30 days. If they fail to do so you should contact an experienced employment lawyer.

What must the employer give the employee?

According to Labor Code section 432 and the Department of Fair Employment & Housing (DFEH) employers are required to give an employee or job applicant, upon request, a copy of any instrument that the employee or applicant has signed relating to the obtaining or holding of employment.

Moreover, files that are generally considered to be “personnel records” are those that are used to determine an employee’s qualifications for promotion, pay raises, or disciplinary action, including termination. The DFEH has some examples of “personnel records” it believes should be disclosed:

  1. Application for employment
  2. Payroll authorization form
  3. Notices of commendation, warning, discipline, and/or termination
  4. Notices of layoff, leave of absence, and vacation
  5. Notices of wage attachment or garnishment
  6. Education and training notices and records
  7. Performance appraisals/reviews
  8. Attendance records

What happens if my employer refused to disclose my file?

An employer who violates, refuses, or neglects to comply with an employee’s right of inspection is guilty of a misdemeanor. Labor Code Section 1199(c). Despite this law, it is rare than an employer will go to jail for this. However, you may try to get penalties via section 1198.5(k), which states:

If an employer fails to permit a current or former employee, or his or her representative, to inspect or copy personnel records within the times specified in this section…the current or former employee…may recover a penalty of seven hundred fifty dollars ($750) from the employer.

Employment Attorney – What about my payroll records?

According to Labor Code section 226(b), employers are required to permit current and former employees to inspect or copy payroll records pertaining to that current or former employee. An employer who receives a written or oral request from a current or former employee for his or her payroll records shall comply with the request within 21 calendar days.

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Branigan Robertson is a California employment lawyer who exclusively represents employees in workplace disputes. He focuses his practice on sexual harassment, wage & hour, wrongful termination, and retaliation. Visit his website at BRobertsonLaw.com or call his office at 949.667.3025.

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Filed under Discharge & Layoffs, Employment Records, Labor Law, Uncategorized

Congratulations to Jeffrey Greenman For Winning CAALA’s “Rising Star” Award

Jeff Greenman CAALA Rising Star Award

Jeff Greenman, a personal injury attorney in Newport Beach and good friend of mine, was recently awarded the Consumer Attorneys Association of Los Angeles’ (CAALA) inaugural “Rising Star” award. In his short career he has obtained some amazing results. This past year he won a million dollar medical malpractice verdict.

“The jury returned a verdict of $1,017,500, beating plaintiff’s 998 demand for $750,000. After the verdict was returned, there was pandemonium in the courtroom with the client crying and hugging the jury, and the jury crying and hugging back.”

This is an important award. It recognizes young talent and gives it a boost. But this verdict isn’t Mr. Greenman’s best. He’s obtained a $17 million dollar settlement, $12 million dollar settlement/verdict, and a $5 million dollar settlement (just to name a few) for his clients. It goes without saying that Mr. Greenman has started his career winning big.

Check out Mr. Greenman’s website at Greenman Law PC. Mr. Greenman graduated from Chapman University School of Law and has been practicing law for six years.

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Branigan Robertson is a California employment lawyer who exclusively represents employees in workplace disputes. He focuses his practice on sexual harassment, wage & hour, wrongful termination, and retaliation. Visit his website at BRobertsonLaw.com or call his office at 949.667.3025.

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California Employers Cannot Demand Your Social Media Passwords

Giving Facebook Passwords to Boss Illegal in California

Should your boss be able to access your Facebook, Twitter, or LinkedIn page?  What if he demands that you give him your password to such sites as a condition of employment? Believe it or not, many employers in California are demanding that their employees give them access to their social media platforms. If the employee doesn’t comply the employer will show them the door. Is this legal? Not anymore. On September 27 2012, California Governor Jerry Brown just signed into law a bill passed in the California legislature:

Assembly Bill 1844 by Nora Campos (D-San Jose) prohibits employers from demanding user names, passwords or any other information related to social media accounts from employees and job applicants. Employers are banned from discharging or disciplining employees who refuse to divulge such information under the terms of the bill. However, this restriction does not apply to passwords or other information used to access employer-issued electronic devices. The bill further stipulates that nothing in its language is intended to infringe on employers’ existing rights and obligations to investigate workplace misconduct…. Proponents of Assembly Bill 1844 say this is a common-sense measure that will bring clarity to a murky area of employment law and stop business practices that impede employment.

I predict that the litigation under this new law will surround whether or not the employer is investigating workplace misconduct. When is an employer investigating? What are they investigating? Is there a formal process for this? California courts will have to settle all of these questions.

Moreover, this bill only applies to California. What about the rest of the country? The Password Protection Act of 2012 is a federal bill that is a making its way through the House of Representatives. In addition to forbidding employers from requesting passwords, it would prohibit employers from discriminating or retaliating against a prospective or current employee based on her refusal to provide access to personal accounts.

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Branigan Robertson is a California employment lawyer who exclusively represents employees in workplace disputes. He focuses his practice on sexual harassment, wage & hour, wrongful termination, and retaliation. Visit his website at BRobertsonLaw.com or call his office at 949.667.3025.

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Filed under Company Property, Defamation, Freedom in the Workplace, Human Resources, Privacy at Work Rights, Social Media

Facebooking About “Naked Twister” With Co-workers Is Not a Good Idea if You’re Suing for Sexual Harassment

Naked Twister, Sexual Harassment, Facebook, LawsuitTennessee is a strange place. Earlier this year a very interesting decision was handed down by a Tennessee Federal District Court, Targonksi v. City of Oak Ridge. The case is a typical sexual harassment case by a female police officer against her supervisor. The female plaintiff claimed that she was subjected to a ‘hostile work environment’ because her supervisor was allegedly “spreading sexual rumors” about her. According to Plaintiff, her supervisor told her that he thought she was “a lesbian and I wanted to be part of” an orgy the supervisor was trying to coordinate.

Plaintiff testified at her deposition, “I’m a Christian and I strive really hard to be a moral person. So for someone to start thinking of me as someone who has orgy parties at my house while my son is home, that’s severely humiliating to me.” Plaintiff further testified that she would never “go out and talk to people about” such things, even in a joking manner.

Curiously, however, a few months after the sexual rumors were allegedly spread, she Facebooked about her desire for a female friend to join her “naked in the hot tub.” Moreover, she discussed “naked Twister” during a party at a cabin in the woods. Even more damming, she talked about female orgies involving herself, another female, and others, to be filmed by her very own husband.

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Filed under Freedom in the Workplace, Harassment, Human Resources, Privacy at Work Rights, Relationships, Sexual Harassment, Social Media